Should Athletes Keep Politics Off the Field? Conservatives Disagree

Ask five conservatives whether a football player may kneel during the national anthem and you will get six opinions and a lecture on the Constitution from the one who has been waiting all week. That is not a weakness of the movement. It is what you get when a movement believes in both property rights and patriotism, and then finds a case where the two seem to point in different directions.

Let me do what I always try to do with a hard question: define the terms, separate the facts from the values, state each side as its best defenders would, and then argue for a conclusion. The conclusion is not the one that wins applause from either camp. It is simpler, and it is more demanding.

The terms

Three distinctions do most of the work in this debate, and almost everyone who argues loudly about it skips at least one.

Government versus employer. The First Amendment says "Congress shall make no law" abridging the freedom of speech. It restrains the state. It does not, by itself, restrain a private business, a private league or a private university. A team owner who tells a player to stand is not violating the First Amendment. A public school that tells a student to stand may be, as we will see.

Right versus wisdom. That a league has the right to set a rule does not tell us whether the rule is wise. Conservatives are quick to say the first of those about a baker or a bookstore. We should be equally quick to say it here, and equally willing to argue about the second.

Respect versus compulsion. Standing for the anthem is a gesture of respect. A gesture that is compelled stops being a gesture of respect and becomes a performance of obedience. That distinction is old. It is the heart of the 1943 flag-salute case that every American should read, and it is the reason that a conservative who wants the flag honoured should be careful about who is holding the whip.

The facts, in order

On August 26, 2016, quarterback Colin Kaepernick of the San Francisco 49ers sat during the anthem before a preseason game. After a conversation with a former Army Green Beret and NFL long snapper, Nate Boyer, he moved to kneeling, beginning with the final preseason game, on September 1, 2016, as a way of showing more respect for military members while still making his point. Other players, in other cities, joined over the following seasons, and the subject of the debate expanded from the stated cause of police conduct and racial justice to the question of the anthem itself.

In May 2018 the league's owners adopted a new policy. Players on the field during the anthem were required to stand and show respect for the flag and the anthem. Players who did not wish to stand could remain in the locker room until the anthem was over. Teams would be fined if players on the field did not comply. The players' union filed a grievance in July 2018, and later that month the league and the union agreed to put the policy on hold while they talked, so it did not go into effect as written.

The 1968 Olympics supply the best-known earlier parallel. On October 16, 1968, in Mexico City, American sprinters Tommie Smith and John Carlos, gold and bronze medallists in the 200 metres, bowed their heads and raised black-gloved fists on the podium during the playing of the anthem. The Olympic establishment treated that as a violation of the rule against political demonstrations, and both men were expelled from the Games. The Olympic Charter, in the versions I checked, bars demonstrations and political propaganda at Olympic sites. Both men were later honoured, and the image is now a staple of American civic memory.

There are also examples that run in the opposite direction. Prayer on the field is a familiar one. A coach who kneels at midfield after a game to say a quiet prayer is engaged in speech by a person who, in a public school, works for the government. The Supreme Court held in 2022 in Kennedy v. Bremerton School District that the school district violated the coach's Free Exercise and Free Speech rights when it suspended him over his post-game prayers. Conservatives cheered, and rightly. The same principle that protected a coach kneeling for God in 2022 is the principle that a player's kneeling for something else must be measured against.

The case for the league's right to set the rule

State it as its strongest defenders would. Pro football is an entertainment business. Its owners and its sponsors have a legitimate interest in the product on the field. Players are employees, many of them extremely well paid, and a workplace may require employees to follow conduct rules during working hours. An employee at a bank cannot hand out campaign leaflets at the teller window. A flight attendant cannot decide what to wear. If we believe in freedom of contract, we believe that those who sign the contract take on its conditions. The principle that lets a Christian baker decline to make a cake is the same principle that lets an owner say what happens on his field.

This is a serious argument, and it rests on principle, not on convenience. Conservatives who make it are saying: we believe in limited government, so we should not ask Washington to tell a private league what to do, and we should not ask the league to forget that it is private.

The case for the standing rule

Now the other side. The anthem is not just any pre-game ritual. It is the one moment in American life when millions of strangers stand for something that is not a team, a party or a person. It honours the dead of every war and the living who serve. For a veteran, standing for the anthem is not a choice made on a given Sunday. It is a promise kept. The league is the most public stage in American entertainment, and for the performers on that stage to turn their backs on the ritual during working hours is, on this argument, more than a workplace matter. It is an insult to people who gave something real.

This is also a serious argument, and it rests on a principle of its own: that a free people has a duty to cultivate habits of gratitude, and that civic rituals matter because they are shared. The defenders of the standing rule say, in effect, that a league that keeps the anthem and then lets players ignore it has taught its young viewers that the anthem is optional.

Where the two sides actually disagree

Notice what the two conservative positions share. Both believe the flag deserves respect. Both believe that Washington should not run the NFL. Neither claims that the First Amendment forbids the league from setting a rule. The disagreement is narrower than the shouting suggests. It is a disagreement about what a private league ought to want, and about whether the way to cultivate respect is to command it or to earn it.

I would put the matter in four numbered premises, so the reader can see where to push back.

1. A private league has the right to set conduct rules for the field. That is a matter of freedom of association and contract, and conservatives of all stripes should defend it.
2. A rule that is enforced selectively is not a rule, it is a mood. If a league forbids one form of expression on the field and permits others it likes, it has not set a conduct rule. It has chosen a cause.
3. Compelled respect is a contradiction. A government cannot require anyone to salute, and a league that threatens to fine a player into a gesture is borrowing a method that the Constitution forbids to the state. The league may do it. It should ask whether it is wise.
4. Therefore the principled position is a single rule, stated in advance, applied to every cause, and enforced the same way for every player. The test of the rule is not whether you like the cause. It is whether you would apply the rule if the cause were one you favoured.

The consistency test

Here is where I think conservatives have the strongest claim, and where the league has the weakest record. Since the anthem dispute began, major sports leagues have allowed or encouraged a great many on-field and on-uniform expressions: messages on helmets, warmup shirts, end-zone stencils, patches, and, for months at a time, causes selected by the league itself. Most of those causes were popular with the people who run the leagues. Some were worthy. Some were contested. The policy that emerged was not "no politics". It was "some politics, chosen by us".

That is the point where the principle of the private league stops being a conservative defence and starts being a form of cover. If a league may stop a player from kneeling for one cause because it is political, it may do so for every cause. If it permits one cause because it likes it, it has no principled way to ban another because it does not. A conservative who asks the league to enforce the anthem rule has to ask it to enforce the same rule against the messages he likes and against the messages he does not. That is the only form of the argument that survives contact with its opponents.

It cuts the other way too. Players who say that sport should be a space for speech should accept that it also has to be a space for speech they dislike. The player who kneels and the player who wears a message about the unborn, or about the military, or about a faith, should be held to the same standard. If the answer is that one is allowed and the other is not, the person making the rule is a partisan, not an umpire. For a contrasting case of a league that went silent when the money was at stake, see The NBA and China in 2019 and the Week a Tweet Cost a League Its Voice.

What the Founders would say about the pledge-and-anthem tradition

The strongest historical anchor is not a sports case at all. In 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court held that a school could not compel children to salute the flag. Justice Robert Jackson wrote that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion". Read the whole opinion; it is short, and it is one of the finest paragraphs in American law. It was written in the middle of a world war, by a Court that had every reason to demand unity, and it chose liberty. The reading of it appears in Barnette's Fixed Star, Reading the 1943 Opinion on the Pledge Passage by Passage.

That decision does not decide the NFL case, because the NFL is not the state. But it supplies the reason a conservative should hesitate before applauding a fine for a man who refuses to stand. The same flag is protected from the government's coercion. A related case, Texas v. Johnson, which held that burning the flag is protected expression, is one where conservatives are still divided and where the ground is similar; see Texas v. Johnson Protected Flag Burning, and Conservatives Still Argue It. And the case of students who wore black armbands, Tinker's Black Armbands and the Rights Students Carry Through the School Gate, reminds us that the line between public and private actors changes who may enforce what.

The strongest objection to a single rule

The objection runs like this: a single rule that tolerates every cause is a rule that tolerates every cause, including ones that most of us find repugnant, and a league has an interest in saying no to some of them. A rule that says "no political speech on the field" is clean. A rule that says "all causes are welcome" is a recipe for a field covered in slogans.

I agree that the clean rule is better, and that is my first preference. A league that says no messages, no gestures, no causes, in uniform, in working hours, is applying a principle that a consistent conservative can support. The players keep their freedom to say anything they like on their own time, on their own platforms, and at the podium after the game. That is how it works at most workplaces, and it is not a violation of anyone's rights. What a league may not do, if it wants to keep the trust of the people who buy the tickets, is pretend to a neutrality it does not practise. Pick the clean rule or the open rule. Do not pick the rule that happens to agree with your sponsors.

There is a related point about corporate activism that I develop at greater length in Corporate Activism Breaks the Deal Between a Company and Its Customers. Customers who feel they are being lectured by the product they bought are not wrong to notice. And for the comic version of what happens when the neutrality of the scoreboard goes missing, there is What If Every League Abolished the Scoreboard in the Name of Equity.

A word to both camps

To the conservative who says the player must stand: I share your love of the flag and I think you are right that the ritual matters. But you will do more for the ritual by persuading than by fining. A salute that is extracted is worth less than a salute that is given, and a salute given under threat honours no one, least of all the flag.

To the conservative who says the league may do whatever it likes and we should keep out of it: you are right about the law. You are on weaker ground if you have been quiet about the causes the league did promote. Consistency is a matter of method, and the test of your method is whether you would apply it to a cause you favour.

And to the league: you are free to choose. The market is free to answer.

The case in brief

1. The First Amendment restrains the government, not a private league, so a league may set conduct rules on the field, and conservatives should defend that right.
2. Right is not the same as wisdom: a league that fines a player into a gesture is borrowing a method the Constitution denies to the state, and it should ask whether the gesture is worth having that way.
3. The decisive test is consistency. A rule that bans one cause and promotes others is not neutral, whichever cause it favours.
4. The principled answer is one rule, stated in advance, applied to every cause and every player, with full freedom off the field.

What you can do: read the short text of West Virginia v. Barnette (1943) on the Supreme Court's website or on Congress.gov's resources, and then decide what rule you would write if the cause were one you opposed.